Recent sexual assault law

[6-000] Recent sexual assault law on JIRS

The Research and Sentencing Division of the Judicial Commission of NSW publishes summaries of recently enacted criminal legislation, relevant case law and other important sentencing developments on the Recent Law & Announcements page of its online Judicial Information Research System (JIRS). The summaries below may also be accessed on JIRS.

Recent sexual assault cases

Evidence

  • 30/06/2019 — Conviction appeal — sexual offences committed by 11 to 13-year-old — evidence in Crown case did not rebut presumption of doli incapax — no evidence of applicant’s maturity or intelligence — circumstances of offending incapable of rebutting presumption — Evidence Act 1995, ss 97, 101 — tendency evidence correctly admitted — common features of each incident sufficiently specific and of significant probative value — directions to jury about use of tendency evidence ameliorated its prejudicial effect — BC v R [2019] NSWCCA 111

  • 24/05/2019 — Evidence Act 1995, ss 55, 137 — Crimes Act 1900, ss 61M(2) (rep) and 66C(3) — child sex offences — judge correct to conclude photographs of penis not admissible for comparison with complainant’s drawings of same — any probative value of evidence outweighed by unfair prejudice — R v Denton [2019] NSWCCA 81

  • 15/01/2019 — Evidence Act 1995, ss 97 , 101(2) — tendency evidence — child sexual assault offences — judge erred by relying on dissenting reasons in CCA judgment of McPhillamy v R [2017] NSWCCA 130 when High Court judgment reserved — judge should have applied principles in Hughes v The Queen (2017) 92 ALJR 52 and other decided cases — incorrect to conclude probative value of evidence outweighed by prejudicial effect — appropriate directions could address prejudice — Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293

  • 14/11/2018 — Evidence Act 1995, s 97(1)(b) — tendency evidence — historical sexual offences — majority of NSW CCA erred by finding evidence of prior sexual offending against different complainants committed a decade earlier admissible as tendency evidence — evidence did not meet threshold requirement of significant probative value in s 97(1)(b) — features of previous conduct and present offending insufficient to link two together — McPhillamy v The Queen [2018] HCA 52

  • 31/10/2018 — Evidence Act 1929 (SA), s 34P(2) — context evidence — historical child sexual assault — SA Court of Appeal correct to conclude evidence of uncharged acts to explain otherwise implausible aspects of complainant’s evidence admissible — probative value of evidence substantially outweighed any prejudicial effect on appellant — directions adequately explained use jury could make of context evidence — no substantial miscarriage of justice — Johnson v The Queen (2018) 92 ALJR 1018; [2018] HCA 48

Sentencing

  • 20/11/2019 — Sentencing — Criminal Code (Cth), ss 474.19(1) (rep), 474.27A(1) — Crimes Act 1900, s 91H(2) — possess/transmit/solicit child pornography/child abuse material and transmit indecent communication to child — general deterrence a primary consideration for offences involving sexual predatory conduct towards children — sentence not manifestly excessive — Martin v R [2019] NSWCCA 197

  • 07/11/2019 — Sentencing — Crimes (Sentencing Procedure) Act 1999, s 25AA — historical child sexual offences — Crimes Act 1900, s 81 (rep) — indecent assault on male — s 25AA requires consideration of current sentencing practices — factors such as breadth of offending, maximum penalty and lack of standard non-parole period relevant considerations — O’Sullivan v R [2019] NSWCCA 261

  • 08/10/2019 — Sentencing — Crimes Act 1900, ss 61HA, 61J(1), 61M(1) (rep) — aggravated sexual intercourse without consent — aggravated indecent assault — victim with serious physical disability — no error in assessment of objective seriousness of offences as “slightly above mid-range” — absence of aggravating factors does not diminish gravity of offences — no hierarchy of sexual offences ranked by type of penetration or sexual connection — Tindall v R [2019] NSWCCA 136

  • 04/10/2019 — Sentencing — Crimes Act 1900, ss 61M(2) (rep), 66A — child sexual assault — juvenile offenders — judge erred by failing to take into account applicant’s age and mental condition when determining objective seriousness of offence — both relevant to assessment of objective seriousness when causative of offending — limited sentencing options available following commencement of community-based sentencing options on 24 September 2018 — BM v R [2019] NSWCCA 223

  • 20/08/2019 — Sentencing — Crimes Act 1900, s 61J — aggravated sexual assault — judge erred by failing to give reasons concerning application of totality principle — sentencing judges required to provide insight into determination in reasons — offenders and community entitled to know how and why a sentence of imprisonment has been assessed — no lesser sentence warranted — Porter v R [2019] NSWCCA 117

  • 19/08/2019 — Sentencing — Crown appeal — Crimes Act 1900, s 66A(2) — aggravated sexual intercourse — 11 month old victim — respondent serving sentence for manslaughter of victim at time of s 66A offence — judge misapplied totality principle — inappropriate to characterise criminality of s 66A(2) offence as substantially reflected in manslaughter offence — R v Toohey [2019] NSWCCA 182

  • 06/08/2019 — Sentencing — Crimes Act 1900, s 66A(2) — child sexual assault — no error in sentencing judge’s finding that offences “within the worst category” — judge undertaking task of placing offences on scale of objective gravity "near the top of the range" — sentence not manifestly excessive — legislative history of s 66A(2) a relevant consideration — sentences must be commensurate with offending and reflect community revulsion for such offences — Gibbons (a pseudonym) v R [2019] NSWCCA 150

  • 24/07/2019 — Sentencing — Crimes Act 1900, ss 66EB(2), 66EB(2A) — procure child for unlawful sexual activity — travel to meet child under 14 following grooming — judge erred in degree of accumulation allowed between sentences — no error deciding not to impose wholly concurrent sentences but degree of accumulation excessive — no double counting of “grooming” which was an element of s 66EB(2A) offence but not s 66EB(2) offence — Milliner v R [2019] NSWCCA 127

  • 26/06/2019 — Sentencing — Criminal Code (Cth), ss 272.14, 474.19, 474.26, 474.27A — procure child to engage in sexual activity outside Australia — use carriage service to transmit indecent communication to child/procure child for sexual activity — general deterrence important for such offences — very lengthy term of imprisonment not necessarily appropriate — sentence excessive given applicant not procuring for sexual activity with himself, no masking of identity, and no inducement or arrangements for activity — comparisons with other cases often difficult, if not meaningless, for such offences — McNiece v R [2019] VSCA 78

  • 24/06/2019 — Sentencing — Crimes Act 1900, s 61J(1) — aggravated sexual intercourse without consent — judge did not err in approach to assessing objective seriousness of offences — incorrect to characterise Crown written sentence submissions that offences in low-range of objective seriousness as a concession — McClelland v R [2019] NSWCCA 59

  • 03/06/2019 — Sentencing — Criminal Code (Cth), s 474.19(1) — animated child pornography in CETS Category 6 — not a “victimless crime” — not substantially different from other categories — material normalises exploitative sexual activity of children — judge did not err by considering applicant's employment as AFP officer an aggravating factor — R v Edwards [2019] QCA 15

  • 15/05/2019 — Sentencing — Crimes Act 1900, s 61J(1) — aggravated sexual intercourse without consent — no error in description of objective seriousness of offence — determining objective seriousness by reference to a point on a spectrum of culpability not a necessary component of sentencing task — Criminal Appeal Act 1912, s 5D — Crown appeal — sentence manifestly inadequate — appropriate to intervene because sentence did not address sentencing principles, gravity of offending or physical and psychological impact on complainant — R v DP [2019] NSWCCA 55

  • 29/04/2019 — Sentence appeal — Crimes Act 1900, ss 61J, 66C, 66EB — child sexual assault — procure child for sexual activity — offences committed against applicant's daughter by partner — no error in assessment of objective criminality of offences — fact offending arose from joint criminal enterprise limited conclusions which could be reached about applicant's involvement — no error to conclude removing applicant’s children from her care did not amount to extra-curial punishment — mere fact sentence for procuring offence highest imposed cannot establish manifest excess — RH v R [2019] NSWCCA 64

  • 18/04/2019 — Sentencing — Criminal Code (Cth), ss 474.26 — use carriage service to procure person under 16 for sexual activity — manifestly excessive sentence failed to reflect applicant's youth and immaturity which materially contributed to offending — observations concerning Crown's reliance on comparative cases with significant distinguishing features — Clarke-Jeffries v R [2019] NSWCCA 56

  • 11/01/2019 — Sentencing — Crimes Act1900, s 66C — aggravated sexual intercourse with child between 10 and 14 — under authority — victim 12 years old — applicant 21-year-old babysitter — judge’s findings regarding objective seriousness of offences not reasonably open — aggravating circumstance had to be analysed in context of range of aggravating circumstances prescribed by s 66C(5) — Dawkins v R [2018] NSWCCA 27

Offences

  • 3/07/2018 — Crimes Act 1900, ss 66EB, 66C(1) — procure child for unlawful sexual activity — father arranged marriage of 12-year old daughter — judge did not err by finding “procure” in s 66EB(2) means “to cause or bring about” — sentencing — sentence not excessive given very serious nature of offending — fact applicant motivated by religious beliefs rather than sexual gratification did not ameliorate sentence — ZA v R [2018] NSWCCA 116

Court Suppression and Non-publication Orders Act 2010

  • 14/08/2018 — Court Suppression and Non-publication Orders Act 2010, ss 8, 14 — appeal against revocation of interim non-publication order — judge did not err in approach to determining whether order in the public interest — accurate reporting of sexual assault trial shows applicant not criminally involved — no prospect of applicant being humiliated or embarrassed by publication — legislation does not operate to prevent mere discomfit to witness — Qiangdong Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159

Procedure

  • 11/11/2019 — Procedure — Crimes Act 1900, s 61I — sexual assault — no miscarriage of justice caused by prosecutor’s cross-examination of accused about evidence not previously put to Crown witnesses — prosecutors should rarely use rule in Browne v Dunn to attack credit of accused — Hofer v R [2019] NSWCCA 244

Sexual Assault Communications Privilege

  • 23/01/2019 — Criminal Procedure Act 1986, ss 298, 299B, 299D — sexual assault communications privilege — judge not precluded from exercising independent discretion when determining whether to grant access to protected confidence documents where another judge previously granted leave for subpoena to produce — judge required to consider s 299D when determining whether access should be granted — satisfying conditions in s 299B(3) necessary, but not sufficient, requirement for access — PPC v Stylianou [2018] NSWCCA 300

Appeals

  • 02/10/2019 — Conviction appeal — Crimes Act 1900, Pt 3, Div 10 — sexual offences — counsel’s failure to lead evidence of appellant’s good character caused substantial miscarriage of justice — issue of character notoriously important in serious sexual assault cases involving word on word factual disputes — likely that failure to lead evidence of character affected trial outcome particularly since Crown case not strong — verdict of acquittal entered — Xu v R [2019] NSWCCA 178

  • 21/03/2019 — Appeals — proviso — erroneous jury direction given in relation to complainant’s lies — complainant’s credibility and reliability central issue at trial — appellate court erred in applying proviso — misdirection cannot be assumed to have had no effect upon jury’s verdict —misdirection effectively precluded jury from adopting a reasoning process open and favourable to appellant — OKS v State of Western Australia [2019] HCA 10

Directions

  • 04/11/2019 — Directions — Evidence Act 1995, s 165B — delay in prosecution — historical child sexual assault — judge did not err by failing to consider specific directions concerning delay to be given during trial — directions regarding prejudicial delay must conform with s 165B not principles in Longman v The Queen (1989) 168 CLR 79 — no error to refuse to permanently stay proceedings — Decision Restricted [2019] NSWCCA 214

  • 30/07/2019 — Directions — sexual assault — consent — judge erred by directing jury that accused could be convicted if they were satisfied beyond reasonable doubt he did not care whether or not complainant consented — directions reversed onus of proof — suggested jury was to decide between two competing versions not determine lack of consent beyond reasonable doubt — Yu v R [2018] NSWCCA 201

Recent sexual assault legislation

  • 23/10/2019 — Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) — amends Criminal Code (Cth) — repeals and replaces definition of forced marriage, and defence of marriage for child sex offences — creates new offences including possession of child-like sex doll and possession of child abuse material obtained using a carriage service — redefines 'child pornography material' as ‘child abuse material’ — commenced 21 September 2019, except Sch 1 (s 2)

  • 27/09/2019 — Justice Legislation Amendment Act 2019 — amends Crimes Act 1900, s 80AF to clarify the position where uncertainty exists about time when sexual offence against child occurred

  • 07/06/2019 — Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) — amends Criminal Code (Cth) — inserts new Div 474, Subdiv H “Offences relating to use of carriage service for sharing of abhorrent violent material” — creates new offences under ss 474.33 and 474.34 for ISPs, or content or hosting services of failing to notify AFP of, or failing to remove, abhorrent violent material — maximum penalty for ISP or internet content host failing to notify AFP of child pornography under s 474.25 increased — commenced on 6 April 2019

  • 03/06/2019 — Justice Legislation Amendment Act (No 3) 2018 — amends Crimes Act 1900 — adds new aggravating circumstance to aggravated sexual assault in s 61J — amends Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively — new provisions and offences with respect to sensitive evidence — amends various Acts to increase maximum judicial retirement age to 75 years — commenced on 28 November 2018 (s 2, see LW 26 November 2018) except relevantly 1.4 [1] and [4], 1.17 [1] and [4] which commence on proclamation — Sch 1.11 [1] and [2] commenced 17 December 2018 — Sch 1.20 commenced 28 February 2019 — Sch 1.2 [1]–[3] commenced on 31 May 2019 (s 2, LW 31.05.19)

  • 15/05/2019 — Crimes Legislation Amendment (Victims) Act 2018 — amends Crimes (Sentencing Procedure) Act 1999 — repeals and replaces Pt 3, Div 2 relating to victim impact statements (VIS) — extends VIS provisions to additional victims— introduces right for all victims to have support person present when reading VIS — new provisions related to VIS in mental health and cognitive impairment forensic proceedings — these amendments commenced on proclamation on 27 May 2019 (s 2, LW 24.05.19) — remaining amendments under Act commenced 1 December 2018 (s 2, LW 28.11.18)

  • 30/11/2018 — Crimes Legislation Amendment (Victims) Act 2018 — amends Children (Criminal Proceedings) Act 1987 — introduces new procedures for determining applications by prosecution for child sexual assault offences to be dealt with according to law — amends Criminal Procedure Act 1986 to extend protections associated with giving evidence to additional witnesses — amends Crimes (Domestic and Personal Violence Act) 2007 to require certain AVO proceedings be closed to the public — these amendments commenced on 1 December 2018 (s 2(2), LW 28.11.18) — balance of amendments commence on proclamation (s 2(1))

  • 30/11/2018 — Justice Legislation Amendment Act (No 3) 2018 — amends Crimes Act 1900 — adds new aggravating circumstance to aggravated sexual assault in s 61J — amends Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively — new provisions and offences with respect to sensitive evidence — commenced on 28 November 2018 (s 2, see LW 26 November 2018) except relevantly Sch 1.2 [1]–[3], 1.4 [1] and [4], 1.17 [1] and [4], 1.20 which commence on proclamation — Sch 1.11 [1] and [2] commence on 17 December 2018

  • 30/11/2018 — Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, certain provisions, commenced on 1 December 2018 (LW 30.11.2018) — these provisions restructure and modernise sexual offences in Crimes Act 1900, Pt 3, Div 10 — new s 80AF permits prosecution when there is uncertainty about when child sexual offence occurred — the new consent provision, s 61HE, expands the definition of consent to “sexual activity” which includes sexual intercourse, sexual touching or a sexual act (s 61HE(11)) and applies to offences under ss 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF: s 61HE(1) and it is no longer limited, as previously, to “sexual intercourse” — the existing consent provision, s 61HA, is repealed — new s 80AG is inserted and is aimed at decriminalising certain acts engaged in by children for offences against ss 66C(3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above 14 years old and the age difference between the alleged victim and the accused is no more than 2 years — new s 293A is inserted into the Criminal Procedure Act 1986 to enable judges to give jury directions to address difference in accounts given by complainant

Note:

See JIRS Recent Law for summaries of all items in this list. Content on JIRS is only available to NSW judicial officers and other JIRS subscribers.

[6-020] Other sexual assault cases and legislation

Cases

30/10/2018 — Directions — miscarriage of justice occasioned by judge’s directions responding to jury question about counsel’s questioning of complainant — directions erroneously left jury in a position to assess appellant’s credibility on basis of their determination of a false issue — capacity of jury to fairly and properly assess appellant’s credibility seriously impaired — Llewellyn v R [2011] NSWCCA 66

01/10/2018 — Directions — historical indecent assault — judge erred by addressing matters associated with complainant’s credibility in a way contrary to agreement between parties as to conduct of trial — directions suggested jury need not consider reasonable possibilities put by defence arising from evidence in trial — re-direction did not cure error — SY v R [2018] NSWCCA 6

18/10/2018 — Evidence — Criminal Procedure Act 2009 (Vic), s 381(1) — admissibility of complainant’s recorded evidence from previous trial — Victorian provision broadly similar to s 306I, Criminal Procedure Act 1986 — Victorian Court of Appeal’s approach to determining question of complainant’s willingness to give evidence incorrect — this determination a question of degree to be determined by reference to other factors in s 381(1) — Court erred by concluding evidence of complaint not admissible as a previous representation within Evidence Act 2008 (Vic), s 66 (identical to Evidence Act 1995, s 66) because not fresh in the memory — further error to conclude probative value of evidence of complaint outweighed by danger of unfair prejudice under Evidence Act, s 137 (identical to Evidence Act 1995, s 137) — The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40

26/09/2018 — Directions — Evidence Act 2008 (Vic), ss 97, 135, 137 (identical to Evidence Act 1995, ss 97, 135, 137) — tendency evidence — multiple sexual offences committed against single complainant — suggested jury directions in single complainant sexual offence cases where evidence of uncharged acts admitted as tendency evidence — judge should not ordinarily direct jury they may only act on evidence of uncharged acts if satisfied they are proved beyond reasonable doubt — NSW practice of directing in these terms should not continue — The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40

20/08/2018 — Sentencing — multiple child sex offences — judge indicated same term for numerous offences — no error in assessment of objective seriousness of each offence — judge adopted discriminating rather than “broad-brush” approach — little variation in objective seriousness for many of the offences — no requirement for judge to rank offences according to scale of seriousness — Rampe v R [2018] NSWCCA 163

05/07/2018 — Evidence Act 1995, ss 97, 100(1), 192(2) — tendency evidence — application to dispense with notice requirements — judge erred by treating lack of sufficient explanation for non-compliance as mandatory and determinative of application — additional error to treat perceived need to correct Crown's systemic non-compliance as relevant to “interests of justice” — failure to refer to matters relevant under s 192(2) — R v AC [2018] NSWCCA 130

24/06/2018 — Procedure — judge-alone trial — adequacy of reasons — Criminal Law Consolidation Act 1935 (SA), s 50 — persistent sexual exploitation of a child — judge’s reasons sufficiently identified and disclosed basis for concluding two or more acts of sexual exploitation proved — adequacy of reasons depends on issues in particular case — DL v The Queen (2018) 92 ALJR 636; [2018] HCA 26

20/06/2018 — Sentencing — Crimes Act 1900, ss 91G, 91K(3), 91L(3) — voyeurism offences — eight victims aged 12 to 16 years — offences committed over 7-year period — aggregate sentence of 6 years not manifestly excessive — offences involved serious violation of privacy — fact victims unaware of filming, images not published, and no physical contact involved did not reduce seriousness of offences — objective gravity not assessed by absence of features which would elevate offence to different category of seriousness or different type of offence — TM v R [2018] NSWCCA 88

13/06/2018 — Sentencing — Crimes Act 1900, s 66A — sexual intercourse with child under 10 — juvenile offender — judge erred by finding Crown‘s concession, that alternative to full-time custody was within range, was “contrary to sentencing principle” — serious sexual offending by young children does not necessarily result in full-time custody — additional error for judge not to consider alternatives to full-time custody — Campbell v R [2018] NSWCCA 87

7/06/2018 — Evidence Act 1995, ss 97, 101 — tendency evidence — judge did not err by ruling tendency evidence admissible and refusing separate trial application — possibility of concoction or contamination relevant in determining whether evidence has significant probative value — observations by Button J in GM v R [2016] NSWCCA 78 that NSWCCA jurisprudence continues to apply approved — test remains whether there are competing inferences that deprive the evidence of significant probative value — BM v R [2017] NSWCCA 253

31/05/2018 — Offences — Criminal Code (Cth), ss 473.1, 474.19 — meaning of “child pornography material” — judge correct not to direct jury that verdicts of acquittal should be entered — appellant’s communications drafted in future tense fell within scope of definition in s 473.1 — definition and offence provisions extend to descriptions of past, present and future sexual activity — Innes v R [2018] NSWCCA 90

25/05/2018 — Evidence Act 1995, ss 55, 137 — context evidence — no error in judge’s finding that evidence of one uncharged act was relevant to fact in issue — a single act is capable of, but faces higher hurdle in, meeting test for relevance as context evidence — no error in application of s 137 — evidence was of significant probative value — risk of tendency reasoning was only danger of unfair prejudice and could be addressed by jury directions — CA v R [2017] NSWCCA 324

6/05/2018 — Criminal Procedure Act 1986, ss 298(1), 299B, 299D — sexual assault communications privilege — judge erroneously found power to order production of documents under s 299B irrelevant — finding that documents sought did not have “substantial probative value” nonetheless correct — Rohan v R [2018] NSWCCA 89

28/03/2018 — Crimes Act 1900, s 91D(1)(b) — participate as client in act of child prostitution — factors relevant to assessment of objective seriousness discussed — judge erred by finding offending below mid "and possibly towards lower end" of range of seriousness — type of sexual service provided relevant to objective seriousness given broad definition under s 91C — aggregate sentence manifestly inadequate — R v Darwich [2018] NSWCCA 46

07/03/2018 — Crimes Act 1900, s 61D (rep) — historical sexual intercourse without consent — Crown case presented on basis appellant reckless as to consent — not unreasonable for jury to conclude Crown had proved appellant was reckless about whether complainant consented — complainant’s age and sexual ignorance relevant to question of consent — judge’s directions correctly identified how consent to be proved — Morgan v R [2017] NSWCCA 269

29/01/2018 — Sentencing — Crimes Act 1900, ss 73, 76 (both rep) — historical child sex offences — judge did not allow own memory of historical sentencing patterns and practices to dictate sentences — doubtful whether “judicial memory” should be used to establish historical sentencing patterns — settled propositions about changes in sentencing practices for child sexual assault offences — MC v R [2017] NSWCCA 316

29/01/2018 — Sentencing — Criminal Code (Cth), ss 272.8(2), 272.9(2) — sex offences against children outside Australia — relevant sentencing factors and principles — judge erred in approach to totality — overall sentence failed to reflect harm done to each child — when applying totality principle where separate victims involved, temporal proximity of offences not determinative — DPP (Cth) v Beattie [2017] NSWCCA 301

16/01/2018 — Directions — Evidence Act 1995, s 165B — forensic disadvantage resulting from delay in complaint — Crimes Act 1900, s 66A — sexual intercourse with person under 10 — judge did not err by failing to warn jury about consequences of delay — “significant forensic disadvantage” in s 165B requires examination of consequences of delay not its extent — lack of DNA evidence caused by delay not usually evidence within s 165B(2) — Binns v R [2017] NSWCCA 280

11/01/2018 — Crimes Act 1900, ss 91FB, 91G(1), 91H(2) — child pornography offences — “private parts” in s 91FB refers to unclothed genitals and breasts with a visible degree of sexual development — extended definition in s 91I does not apply to s 91FB — judge not required to make express findings as to objective seriousness of each offence — Turner v R [2017] NSWCCA 304

30/09/2015 — Criminal Appeal Act, s 5F(3AA(c)) — Criminal Procedure Act 1986, ss 296 , 299B — sexual assault communications privilege — "counselling communication" in s 296(1) must involve counselling provided by a counsellor — onus is on person asserting the privilege to show communication privileged — documents in this case were not "counselling communications" within s 296 — focused and specific evidence required to ground claim for privilege — statements by judge explaining each ruling in relation to the privilege were sufficient having regard to the circumstances — ER v Khan [2015] NSWCCA 230

[6-050] Other publications

Judicial Officers’ Bulletin

  • P Mizzi, “Balancing prosecution with the right to a fair trial: the child sexual abuse reforms in NSW” (2019) 31(2) JOB 11

  • P Mizzi, “The sentencing reforms — balancing causes and consequences of offending with community safety” (2018) 30(8) JOB 73

  • I Nash, “Use of sexual assault communications privilege in sexual assault trials” (2015) 27(3) JOB 21

  • P McClellan, “Adults surviving child abuse: the work of the Royal Commission” (2014) 26(11) JOB 95

  • RA Hulme, “After Muldrock — sentencing for standard non-parole period offences in NSW” (2012) 24(10) JOB 81

  • M Ierace SC, “Judge-alone trials” (2012) 24(9) JOB 73

  • H Donnelly, “Assessing harm to the victim in sentencing proceedings” (2012) 24(6) JOB 45

  • H Donnelly, “The diminished role of standard non-parole periods” (2012) 24(1) JOB 1

  • P van de Zandt, “The sexual assault communications privilege” (2011) 23(11) JOB 100

Criminal Trials Court Bench BookSpecial Bulletin 30 — relationship evidence in sexual assault cases — Norman v R [2012] NSWCCA 230 — SKA v R [2012] NSWCCA 205 — recent law item (posted 23/11/2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Offenders sentenced to prison in 2010 for child sex offences (see child_sex_offences_imprisonment), 2014

NSW Bureau of Crime Statistics & Research (BOCSAR)The progress of sexual offences through the NSW criminal justice system, 2017

NSW Bureau of Crime Statistics & Research (BOCSAR)Sentencing snapshot: sexual assault, 2009–2010 — Bureau Brief, Issue Paper 72, 2011 (revised January 2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Sentencing snapshot: child sexual assault, 2009–2010 — Bureau Brief, Issue Paper 68, 2011 (revised January 2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Re-offending in NSW, Bureau Brief, Issue Paper No 56, 2011 (revised January 2012)recent law item (posted 20/5/2011)

NSW Bureau of Crime Statistics & Research (BOCSAR)Does the Custody-based Intensive Treatment (CUBIT) program for sex offenders reduce re-offending? — Evaluation Report, Number 193, 2016

Protective custody — paper by Domenic Pezzano, Superintendent Operations Branch, Corrective Services NSW — “Information for the ODPP/Courts on options for inmates who request Protective Custody: Limited Association and Non-Association” (revised December 2010) — procedure when inmate placed in protective custody — what placement options are available for inmates and what security ratings are required for specific Correctional Centres — what programs are available for inmates in protective custody — recent law item (posted 25/3/2011)

[6-100] Government reviews and papers

Consent in relation to sexual offences

The NSW Law Reform Commission was asked by the Attorney General to review s 61HE of the Crimes Act 1900 (NSW), which deals with consent in relation to sexual offences. The Law Reform Commission have now published some preliminary submissions in response to the terms of reference. These can be accessed at https://lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Consent/Preliminary-submissions.aspx.

NSW Sexual Assault Strategy 2018-2021

The NSW Government released their NSW Sexual Assault Strategy 2018-2021 in July 2018. The strategy is a comprehensive framework to improve prevention and response to sexual assault and delivers a three year, whole-of-government approach to sexual assault in NSW for the first time.

The Strategy aims to improve the existing service system for adults and children who experience sexual assault, while holding perpetrators to account. It also seeks to raise community awareness of sexual violence while improving prevention and education measures in families and the wider community.

Final Report of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders

In September 2017, the NSW Government prepared a discussion paper that identified issues and posed questions about possible options for child sexual abuse law reform. The paper considered the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in its Criminal Justice Report, released in August 2017, and the recommendations of the NSW Parliament's Joint Select Committee on Sentencing of Child Sexual Assault Offenders: see Final Report of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders at https://www.parliament.nsw.gov.au/committees/DBAssets/InquiryReport/ReportAcrobat/5741/Final%20Report%20of%20the%20Joint%20Select%20Committee%20on%20Sent.PDF. The purpose of the discussion paper is to examine child sexual offences in NSW to simplify the current framework, revise current offences and identify whether any new offences should be created to fill any gaps in the existing framework. See Discussion paper: Strengthening child sexual abuse laws in NSW at www.justice.nsw.gov.au/justicepolicy/Documents/strengthening-child-sexual-abuse-laws.pdf